STATE OF TASMANIA V LEIGH DITTMAN ESTCOURT J
COMMENTS ON PASSING SENTENCE 13 JUNE 2019
The defendant Leigh Dittmann has pleaded guilty to one count of possessing child exploitation material contrary to s 130C of the Criminal Code.
At approximately 10:00am on Monday 19 September 2016, a search warrant was executed by police at the defendant’s home and police located and seized an ASUS laptop and a TDK USB drive.
A forensic examination of the laptop and USB device revealed that there were, in total, 966 unique child exploitation images, and 9 unique child exploitation videos across both devices.
Police categorised the material using the Child Exploitation Tracking System (CETS)/ Australian National Victim Image Library (ANVIL) schemes and determined as follows:
In category 1 – Which depicts no sexual activity, however sexually suggestive in nature. Includes nudity, sexually suggestive posing and emphasis on genital areas or solo urination by a child, there were 616 images and 9 videos.
In category 2 – Which includes solo masturbation by a child or sexual acts between children in which no penetration occurs, although includes penetrative use of sex toys by the victim, there were 33 images.
In category 3 – Which includes non-penetrative sexual activity between adults and children, and may include mutual masturbation, there were 79 images.
In category 4 – Which includes penetrative sexual activity between children only or adult(s) and children, there were 162 images.
In category 5 – Which includes sadism, bestiality, humiliation, torture or child abuse, there were 20 images.
In category 6 – Which includes anime, cartoons, comic, computer generated graphics, drawings, audio and text depicting or describing children engaged in sexual poses or activity, there were 56 images.
The images and videos were predominately of female children between the ages of 9 and 14 years, although there were also some males depicted in that age range. Some of the images depicted females as young as 3 or 4 years old.
The images predominately depict female children fully naked or naked from the waist down with legs spread and a focus on the genitalia area. Most of the category one images depict the same female in a series of different sexually suggestive poses.
One category 3 image depicts a young female child about 5 years of age lying on her back with her legs spread so as to expose her vagina. An adult male is depicted touching or rubbing the outside of her vagina with his erect penis. The child depicted in this photograph appears to be in obvious distress.
One category 5 image depicts a female child lying on her back, her legs are spread and bent and have been taped together around her knee and thigh area. The child’s wrists have also been taped together and there is tape over her mouth. Each of the child’s legs are tied under each knee to her lower arm area. The child’s vagina is exposed.
All of the images in category 5 involve very young females, aged approximately 3-5 years old. All images either involve bestiality or the children being tied up at their legs, hands and/or neck.
All of the child exploitation material on both devices had been saved in folders and sub-folders created by the defendant.
From the data obtained from the hard drive of the laptop, police were able to extract information which showed that the defendant was actively searching for and downloading child exploitation material from the internet.
On 22 May 2017, the defendant participated in an interview with police under caution. He told police that he was not aware of anything that was alleged to be on his computer, but that he possibly clicked on ‘inappropriate’ websites which popped up when he was viewing adult pornography. He explained that he was a heavy drinker for a long time and told police that he would have no idea what he may or may not have clicked on. The defendant told police that he knew that child exploitation referred to pictures of girls or boys under the age of 14 or 15 years and when police showed him a sample of the images found on his laptop, he admitted that he knew that they were wrong.
The defendant explained that he would look at pornography on a nightly basis for anywhere between 10 minutes and 2 hours at a time and that he got sexual pleasure out of looking at it. He would often type in “teen amateur” in Google to “see what comes up”. The defendant also told police that it was possible that he had downloaded things and had never gone back to them and therefore did not realise that they were there.
The defendant has is now 37 years old and has no prior convictions that are relevant to this matter. He pleaded guilty to this offence, although not at an early stage.
Although the defendant is unrepresented I have had the benefit of an extensive pre-sentence report. This disclosed significant alcohol use which the defendant identified has considerably impacted on his offending behaviours. He reported being a regular social drinker since teenage years, and stated he was unsure as to when this escalated, however stated he noticed an increase following the breakup of a long term relationship in 2013. The defendant estimated he was consuming around 2 litres of port per night. He identified his consumption escalated when knowledge of his offending became public.
The report also discloses that the defendant claimed he did not intentionally download child exploitation material, and claimed when entering the word teen into a search he was looking for persons aged 18 years or over. However he acknowledged this does not adequately explain the history of websites and bookmarks found on his device. He disclosed having received multiple alerts informing him he had attempted to access child related material, and that his IP address had been sent to Interpol.
The defendant stated that he remembered seeing things of an inappropriate nature, however again claimed not remembering saving them on computer or USB. He claimed the content was not what he was looking for and could have been accessed in a “drunken stupor”. He stated he does not remember saving the images he accessed although does remember seeing images appear. He described his memories of these images as “all kind of blurry”. However he acknowledged that the number found on his devices is difficult to justify.
I also have the benefit of a psychiatric report. Apart from alcohol use disorder the defendant has no mental illness or disorder. He does not have paedophilic disorder and he is at a low risk of reoffending. The prospects of recidivism are even lower if he addresses his alcohol misuse.
I take into account that the defendant had no contact with any of the children in the images. He did not move beyond his voyeurism, and there was never any risk of him behaving inappropriately towards others, or moving on to become a participant in the sort of abuse depicted in the images he accessed on the material I have available to me. He did not create any of the child pornography. He did not, on the material before me, pay for it or share it with anyone. He did however store it and bookmark some websites and catalogue the images.
His criminal conduct did not involve chat rooms. It is obvious from the material before me that the defendant has previously been of good character and has been well regarded. However, in the case of child exploitation less weight is to be given to good character than is ordinarily the case because of the importance of general deterrence in order to prevent the abuse of children. The possession of child exploitation material is a very serious crime. As has been noted by other judges of this Court, children suffer appallingly as a result of the production of these images. To be in possession of them, without more, contributes to a demand for them, and the demand perpetuates the abuse of children.
Relevant to sentencing are the number and nature and the content of the images, as well as the defendant’s interest in them and whether they were shared. As I said, they were not in this case shared, but the nature and number of them and the defendant’s obvious interest in them is disturbing, particularly the category 5 images.
A prison sentence with no part of it suspended would be appropriate in this case, but I have a report recommending the defendant as suitable for home detention and I propose to take that course.
This matter is a reportable offence pursuant to the provisions of the Community Protection (Offender Reporting) Act 2005. The maximum length of the reporting is 8 years. I am not satisfied that I ought not to make an order under the Act, and I do. I order that the Registrar place the defendant’s name on the register, and that he complies with the reporting obligations under the Act for a period of 4 years following his release from home detention.
Pursuant to s 130F of the Criminal Code, an application has been made for Exhibit No. 375455461 and No. 375455439 to be forfeited to the State of Tasmania and I make that order.
The defendant is sentenced to 12 months’ home detention from today. The order I make includes all of the core conditions contained in s 42AD(1) of Pt 5A of the Sentencing Act 1997, including s 42AD(1)(g) as to electronic monitoring.
In addition to those core conditions I impose the following conditions be included in the Order:
- You must, during the operational period of the order, remain at the home detention premises at all times unless approved by a probation officer;
- Immediately upon your release from Court, you must attend the Community Corrections office at Burnie for induction onto this order, and an explanation as to its full terms;
- You must, during the operational period of the order, maintain in operating condition an active mobile phone service, provide the contact details to Community Corrections and be accessible for contact through this device at all times;
- You must submit to the supervision of a Community Corrections officer as required by that officer;
- You must not take any illicit or prohibited substances. Illicit and prohibited substances include:
- Any controlled drug as defined by the Misuse of Drugs Act 2001; and
- Any medication containing an Opiate, Benzodiazepine, Bupropion, Hydrochloride or Pseudoephedrine, unless you provide written evidence from your medical professional that you have been prescribed the relevant medication;
- You must not, during the operational period of the order, consume alcohol, and you must, if directed to do so by a police officer or Community Corrections officer, submit to a breath test, urine test, or other test, for the presence of alcohol.